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Commentary Law and Policy

Writing the Kavanaugh Allegations Off as ‘Boys Will Be Boys’ Does a Disservice to Actual Teenagers

Caroline Reilly

It's crucial to note up front the ways in which this culture of leniency interacts with privilege, gender, and race.

On Sunday, more details emerged about Christine Blasey Ford, the California professor who says U.S. Supreme Court nominee Judge Brett Kavanaugh attempted to rape her—covering her mouth to muffle her cries for help—when she was 15 and he was 17.

Many were quick to jump to Kavanaugh’s defense. Some accused Ford of lying. Others conceded that if this did happen, Kavanaugh was just a kid at the time—something that took place when he was a teenager, they reasoned, shouldn’t disqualify him now from a seat on the highest Court in the land.

As a law student and a reproductive justice advocate, I spend the majority of my time fighting for minors to be given more rights—namely, the right to abortion and other reproductive decisions. I have written extensively about how any efforts to curtail those rights are a gross infringement on their autonomy, and about how teens possess the maturity and agency required to make such choices. Hell, before college I spent every summer and internship working in schools with students from kindergarten through eighth grade.

And so, I take particular offense to the notion that what Kavanaugh allegedly did represents any sort of normative teenage behavior—and that we cannot expect more from teens and young people, who possess an incredible amount of emotional intelligence and agency.

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In making these assumptions, we not only fail to hold people accountable for and thus normalize sexual violence, we do a disservice to young people, who have proven time and again that they are better than these tired tropes. We also legitimize policies that marginalize some of the most progressive and important members of our society: By cloaking teenage harms in the supposition that they are too immature to know right from wrong, we give politicians the latitude to make those calls for them—including restricting their reproductive rights and civic engagement.

It’s crucial to note up front the ways in which this culture of leniency interacts with privilege, gender, and race. We live in a society where we routinely see teenage boys of color murdered, often at the hands of law enforcement with few consequences to show for it. Meanwhile, Black teens are five times more likely than white youth to be incarcerated in juvenile facilities.

Compare that with the number of folks going to great lengths to make right Kavanaugh’s alleged actions, simply because he was a teenager or because they classify the behavior Ford said he exhibited as “misconduct” or “horseplay.” Take, for example, people like Tom Nichols, a professor at the Naval War College, who went right past the predictable “he didn’t do it” defense to a new, fun “rape isn’t actually that bad” defense—saying someone’s life shouldn’t be ruined by a drunken sexual assault that probably was measured in minutes.” (It’s also worth pointing out that in some cases, those rushing to the defense of Kavanaugh are the very same people who call for harsh and grossly unfair treatment of people of color—both teens and young people—in our justice system.)

And where do teen girls fit into this equation? As collateral damage in the name of allowing boys to be boys? Consider the paternalistic world that teen girls live in—their every move in some cases dictated by societal notions of purity and acceptability. The assumption that they can’t be trusted to make decisions for themselves manifests as everything from dress codes, to laws restricting their reproductive rights. At 25, I have an acute awareness of what being a teen girl feels like, in part because I’m still unlearning the harms imparted on me at that age. It’s a remarkable, almost eerie juxtaposition that the only existing precedent we have from Kavanaugh on abortion comes from his decision in Garza v. Hargan—in which he ruled against an unaccompanied immigrant teen who was trying to end her pregnancy.

Kavanaugh’s defenders also argue that in allowing his alleged assault of Ford to derail his nomination, we are opening the floodgates to allow any youthful action to follow someone throughout their entire life. But that argument fails to acknowledge first that attempted rape is far from a par-for-the-course teenage mistake, and underestimates sexual assault survivor advocates’ capacity for nuance. It presumes we cannot be trusted to know the difference between a clumsy teenage mistake and a heinous act of sexual violence.

If Kavanaugh’s defenders are really concerned about teenagers misinterpreting or misunderstanding consent, their argument should be for more robust sex education programs—ones that include frank and honest conversations about not only consent, but pleasure.

What’s more is sexual assault survivors’ advocates are not a monolith—a feature that arguably makes their movement even stronger. Many are incredibly dedicated to improving the justice system for both survivors and perpetrators, thus building a better response to sexual violence without fueling mass incarceration. Some of them are even teens themselves. Arguing that Kavanaugh’s alleged assault precludes him from a Supreme Court appointment is not incongruent with the belief that there are developmental and cognitive differences between adults and teenagers, and that we need a criminal and juvenile justice system that reflects that. This is not a conversation about what consequences Kavanaugh should have faced when he was a teen, and no one is denying the fact that juvenile defendants should absolutely be granted allowances and considerations not enjoyed by adults. That doesn’t mean, however, that we cannot hope for—even demand—a cultural shift that no longer enables or excuses sexual violence no matter how old the perpetrator is.

Because, it is, in fact, a full appreciation for teens and young people that should allow us to denounce Kavanaugh’s alleged actions. Is it so much to ask that we spare the next generation of teen girls the humiliation of having their bodies dissected and ranked at lunch time? Or that we afford teenage boys the respect of not being used as human shields for the bad behavior of sexual predators?

Teens are at the forefront of some of today’s most trenchant social movements; they’re demanding gun control reform, standing up for abortion access, and advocating for greater civic involvement and voter turnout. Explaining away Kavanaugh’s alleged behavior by saying he was too young to know better is an insult to those teens, who clearly understand consequences, empathy, and respect.

In the end, we’re simply asking to ensure that a Supreme Court justice exhibit a basic understanding of consent and sexual autonomy, and that we don’t appoint someone accused of personally and politically degrading women to a position of arguably unrivaled power.

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